All Over the Map

No one disputes that Texas’ 2003 congressional redistrict­ing bears the mark of Tom DeLay.

Legal and ethical issues still plague the former U.S. House Republican leader for his role in reshaping his state’s once evenly divided congressional delegation. The new map gives the GOP a commanding majority over the Democrats.

But the attention will shift to U.S. Supreme Court Justice Anthony M. Kennedy on March 1 when the court hears arguments that the Texas redistricting was nothing more than a partisan and racial gerrymander that unfairly cost Democratic, Latino and African-American voters. League of United Latin American Citizens v. Perry, No. 05-24.

“Here’s a naked power grab by the Republican Party,” says league executive director Brent A. Wilkes.

Democrats in Texas say Supreme Court approval of the map could spread the practice of mid-decade redistricting to other states and disrupt the balance in the two-party system. State officials in Colorado and Georgia already have moved to redraw their lines. Republicans, who control both the Texas legislature and the state’s executive office, say the 2003 redistricting merely corrected at the earliest opportunity the state’s 1991 map, drawn when Democrats ran the show. They say Democrats unfairly configured the districts to maintain their majority, though the state’s electorate in the meantime had turned decidedly Republican.

Recent Precedent

The case comes before the court less than two years after a plurality decision in which the justices upheld a Pennsylvania reapportionment plan against complaints of partisanship. Vieth v. Jubelirer, 541 U.S. 267 (2004). With the Texas case, the justices for the second time will consider when, if ever, party politics can illegally taint the process.

Kennedy has drawn special attention from the Texas plaintiffs. Though he supplied the fifth vote to affirm the Pennsylvania plan, he departed from the four other justices, who would have held that political redistricting quarrels never concern the court. Concurring in the judgment, Kennedy refused to rule out the possibility that partisanship can go too far.

With DeLay involved, the Texas case has a little bit of something for everyone. The 2003 redistricting replaced a court-drawn map issued after legislators were unable to agree on new district lines based on 2000 census data.

DeLay, who relinquished his House leadership post in January, also stands charged with money laundering in state court. He is accused of funneling corporate contributions to GOP candidates for the Texas legislature. Those candidates’ elections in 2002 gave DeLay the edge he needed the next year in the state assembly to muscle through the mid-decade redistricting. The plan gave Republicans six new seats and a 21-11 majority in the current Congress.

The House ethics committee also rebuked DeLay for pressuring the Federal Aviation Administration into tracking a plane believed to be carrying Democratic state lawmakers out of Texas. The Democrats fled the state in an unsuccessful attempt to prevent the legislature from convening a quorum for a vote on the redistricting. DeLay has denied any wrongdoing and claims the charges against him are politically motivated.

Meanwhile, Justice Department political appointees signed off on the redistricting plan under the 1965 Voting Rights Act, despite objections from career department lawyers that it illegally diluted racial minorities’ strength at the bal- lot box. A three-judge federal district court panel in Texas ultimately backed the Justice Department in the ensuing flurry of litigation.

Of 10 cases challenging the new boundaries, the Supreme Court on Dec. 12 accepted and consolidated four containing sometimes overlapping constitutional and statutory claims. The fundamental ques- tion remains, however, of whether political disputes arising from redistricting are ever the business of the courts. Specific issues likely to come into consideration include:

• Whether the equal protection clause and the First Amendment right of association prohibit states from redrawing legal plans in the middle of a decade for the sole purpose of maximizing party advantage.

• Whether political partisanship can justify dismantling a Latino district to elect an Anglo-preferred candidate, without violating the Voting Rights Act and the Constitution.

Cases Leapfrogged

Observers and lawyers involved in the cases say they were surprised that the Supreme Court took the Texas cases when it did, especially when they had been calendared for conference six times before. The justices in October 2004 had sent the plan back to the Texas-based district court panel for reconsideration in light of Vieth.

The panel responded on June 9, holding that political motivation alone wouldn’t sink the plan. Henderson v. Perry, 399 F. Supp. 2d 756 (2005). On the next trip back to the Supreme Court, the justices leapfrogged the Texas cases over others, and set them for argument less than two weeks after the release of a letter from the career Justice Department lawyers detailing their objections to the plan under the Voting Rights Act. “I think the state was stunned,” says Jose Garza of San Antonio, a lawyer for the League of United Latin American Citizens. “We were certainly surprised that the Supreme Court didn’t ask the state to respond.”

The arguments come less than a week before the state’s congressional primary, scheduled for March 7. A decision by the time the court adjourns in June would allow time, if the justices scuttle the plan, to redraw the map before the November general election. Though they remained confident the state would prevail, lawyers for the Texas Attorney General’s Office were unable to offer immediate detailed comment as they scrambled to draft briefs to defend the redistricting in advance of arguments.

Since Vieth, both sides have focused on arguments designed to sway Kennedy, amid speculation that the justice finally had seen a case that required judicial intervention. “Something’s up,” says election law expert Richard L. Hasen of Loyola Law School Los Angeles. “We just don’t know what it is yet.”

Kennedy joined Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia and Clarence Thomas in upholding the Pennsylvania reapportionment. The four other justices would have gone a step further and taken the court altogether out of the business of refereeing partisan-based redistricting disputes.

“No judicially discernable and manageable standards for adjudicating political gerrymandering claims have emerged,” Scalia wrote for the four justices. “Lacking them, we must conclude that political gerrymandering claims are nonjusticiable.” Court observers doubt the outcome would change with Rehnquist’s replacement on the court by Chief Justice John G. Roberts Jr. and O’Connor’s replacement by Samuel A. Alito Jr. So getting on Kennedy’s good side remains the No. 1 priority.

Options Left Open

though expressing concern about a judicial invasion of the political sphere, Kennedy nevertheless refused to foreclose the possibility that the court may one day encounter a situation so egregious that it would be forced to step in. But then Kennedy immediately smacks into two barriers: lack of consensus on what’s fair in redistricting and what’s not, and the absence of rules to limit judicial intervention.

“A determination that a gerrymander violates the law must rest on something more than the conclusions that political classifications were applied,” Kennedy wrote. “It must rest instead upon the conclusion that the classifications, while generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective.”

Kennedy declined to embrace three different tests for judicial standards to govern partisan gerrymanders, advanced by dissenting Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. With no movement from those four or from Kennedy, the state effectively can isolate Kennedy as a majority of one. Still, plaintiffs may gain an advantage because the Texas mid-decade redistricting is about politics, pure and simple. Unlike the usual practice of redrawing districts at the beginning of a decade, the 2003 map lacks much of the varnish that historically has rescued maps from allegations of partisanship, such as equalizing district populations under one person, one vote.

But if the plaintiffs hope to tear up the Texas map by giving the Supreme Court a look at the bare, naked politics behind it, they may want to think again. The next map challenged as an exercise in excessive partisanship just may be drawn by Democrats.

Sidebar

Rocking the Vote

The Supreme Court will consider voting district boundaries.

League of United Latin American Citizens v. Perry, No. 05-204, raises several voting rights issues, among them whether states are permitted to redraw election districts for partisan political purposes after a previous map had been approved.